Terms of Service
1.1 In these Terms of Service (“Tos”) the following words have the following meanings:
“Ad Serving Service” means the ad-serving service as more fully described in Schedule 1 of these ToS.
“Agreement” comprises the (a) the Order Form, (b) these ToS, together with the schedules, and (c) any statement of work (“SoW”).
“Associate” means in respect of any Person to whom the term Associate refers a company, corporation or partnership or other business entity (“entity”) which is directly or indirectly controlled by or under substantially common control with or controls (as the case may be) the person so referred to and for this purpose “control” means the power of an entity to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership, agreement or other document regulating the entity in question) that the entity’s affairs are conducted in accordance with its wishes.
“Campaign” means a coordinated series of linked advertisements with a single idea or theme.
“Customer Content” means logos, trade marks, object and/or source code, images, graphics, text, data, videos, links, audio, comments or other creative elements supplied by Customer to Spirable (by data feed, via the Platform, or otherwise) and/or uploaded, stored or otherwise made available on the Platform.
“Data Protection Laws” means any international, national, state, and/or local law, statute, declaration, decree, directive, legislative enactment, order, ordinance, guideline, code, regulation, rule or other binding restriction as updated and amended from time to time which relates to the privacy and data protection of individuals with regards to the processing of personal data to which a Party is subject, including the UK Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the GDPR, and any other laws or regulations that are similar, equivalent to, successors to, or that are intended to implement the laws or regulations that are identified herein.
“Distribution Channels” means the social media platforms specified in the Order Form and/or as otherwise agreed between the parties during the Term.
“Due Diligence” means customary know-your-customer information, which includes but is not limited to, a pre-contract questionnaire, ultimate beneficial ownership details, and licensing information.
“Effective Date” is the date set out in the Order Form.
“F2P Services” the development and delivery of a F2P Product (defined in Schedule 2) in accordance with Schedule 2 and the support, maintenance and hosting services for the F2P Product as set out in the Specification (defined in Schedule 2).
“Fees” any and/or all of the charges stated in an executed Order Form and/or SoW and payable by Customer to Spirable. Usage based Fees may be set out in a rate card attached to the Order Form.
“Forbidden Jurisdiction” means a jurisdiction in which it is illegal or otherwise unlawful for Customer to provide Gambling Services (whether to residents, citizens or otherwise).
“Gambling Service(s)” means the provision of a sports or event wagering service or game of skill and chance combined (including casino banker’s games), peer to peer game or random number generator game service (including but not limited to via remote communications such as online or via telephone).
“Initial Term” means the period of time stated in the Order Form, starting on the Effective Date.
“IPRs” patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer apps, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
“Integrated Data” means data provided by Spirable and/or its Associates and integrated into Platform Ads.
“Markets” means the geographical locations specified in the Order Form and/or as otherwise agreed between the parties during the Term.
“Materials” means Spirable documentation and materials relating to the Platform provided to Customer.
“Order Form” means an order form specifying relevant details of the Spirable Products which Spirable will provide to Customer.
“Person” means any natural person, corporation, limited liability company, general partnership, limited partnership, proprietorship, other business organisation, trust, union, association, and/or government authority (including public international organisations).
“Platform” means Spirable’s software-as-a-service platform (including any Updates) used to create dynamic, data-driven, advertising templates.
“Platform Ads” means advertising communicated to end users via the Platform.
“Professional Services” the professional services (which shall include managed services) described in an executed Order Form and/or a SoW.
“Programmatic Marketing Service” means the programmatic marketing service as more fully described in Schedule 1 of these ToS.
“Renewal Term” has the meaning give to it at paragraph 11.1.
“Sanctioned Person” means at any time any Person: (a) listed on any Sanctions-related list of designated or blocked Persons; (b) resident in or organised under the laws of a country or territory that is the subject of comprehensive restrictive Sanctions from time to time (which includes, as of the date of this Agreement, Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk and Luhansk regions); or (c) majority-owned or controlled by any of the foregoing.
“Sanctions” means those trade, economic and financial sanctions laws, regulations, embargoes, and restrictive measures (in each case having the force of law) administered, enacted or enforced from time to time by (a) the United States (including without limitation the Department of Treasury, Office of Foreign Assets Control), (b) the European Union and enforced by its member states, (c) the United Nations, (d) Her Majesty’s Treasury, or (e) other similar governmental authority have jurisdiction over any party to this Agreement from time to time.
“Spirable” means Photospire Limited (company number 10004081), trading as Spirable, whose registered office address is 10 Bloomsbury Way, London, England, WC1A 2SL.
“Spirable Products” the Platform, Integrated Data, Training Services, Professional Services, the Materials and/or Support.
“Spirable Technology” means the technology used by Spirable (or its Associates) to provide the Spirable Products.
“Support” the technical support described in the technical support policy in Schedule 5.
“Term” means the Initial Term and any Renewal Term.
“Training Services” the training services offerings in an executed Order Form, and/or SoW.
“Updates” bug fixes, patches, improvements, enhancements, modifications, changes, workarounds, and/or upgrades to new versions that Spirable generally makes available at no additional charge to its customers who are current on payment of all Fees.
“Use Case” is a creative format for digital advertisements designed to deliver relevant and engaging content.
“User” an employee or independent contractor of Customer who is allowed to access and/or use the Spirable Products subject to and in accordance this Agreement, but it excludes a competitor of Spirable.
“Working Day” Monday to Friday except English public holidays (including English bank holidays).
1.2 Unless the context otherwise requires: (i) words importing a gender include every gender and references to the singular include the plural and vice versa, and (ii) any words following the terms including, include, in particular, for example, such as, e.g. or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.3 This Agreement shall be binding on, and enure to the benefit of, the parties and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.4 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
1.5 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.6 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2.1 Customer accepts full and entire responsibility for its selection of the ordered Spirable Products.
2.2 Provided that Customer is current on payment of all Fees and is in compliance with the terms of this Agreement and applicable laws, Spirable will provide the ordered Spirable Products.
2.3 Customer agrees to promptly undertake and fulfil Customer actions (or any other requirements) set out in an executed Order Form, SoW, and/or as specified by Spirable in writing from time to time.
2.4 Customer shall not (or attempt to) access and/or use the Spirable Products (i) for the purpose of building a competitive product and/or service, (ii) copying its features and/or UI/UX, and/or (iii) use the Spirable Products, and/or permit them to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without Spirable’s prior written consent.
2.5 Customer must not allow and/or permit a competitor of Spirable to access and/or use the Spirable Products.
3.1 The provisions of this clause 3 shall apply if Customer has access to the Platform. Subject to and in accordance with the terms of the Agreement, and in consideration of the Fees, Spirable grants to Customer a revocable, non-exclusive, non-transferable, non-sublicenseable right during the Term to access and/or use the Platform and Materials for its internal business purposes. Customer is only permitted to use the Platform to distribute the Platform Ads via the Distribution Channels in the Market(s). This right does not include a right for Customer to allow access and/or use of the Platform and Materials by, or for the benefit of, any Person other than a User.
3.2 Customer must not access and/or use the Platform in any way that (i) is (or may be) in breach of the Agreement and/or applicable laws and regulations, (ii) could, may (or does) damage, disable, overburden, impair, compromise and/or disrupt the Platform, including its security, integrity, and/or performance, and/or (iii) could, may (or does) interfere with other Platform users and/or any other users’ accounts.
3.3 Customer must not access and/or use the Platform in any way to (i) send unsolicited communications and/or video content, junk mail, spam, or other forms of duplicative or unsolicited messages, (ii) store and/or transmit any content that infringes any person’s privacy or IPRs, (iii) post, transmit, upload, link to, send and/or store any content that is unlawful, hateful, abusive, obscene, harmful, threatening, defamatory, obscene, infringing, harassing, offensive, facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence, is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability or age or in a way that is otherwise illegal, causes damage or injury to any person or property, and/or infringes a Person’s rights (including IPRs and/or privacy rights), and/or (iv) post, transmit, upload, link to, send and/or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software.
3.4 Customer shall not (nor attempt to) (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, provide a bureau service or otherwise commercially exploit the Platform and Materials, and/or allow and/or permit the Platform and Materials to become the subject of any charge, lien and/or encumbrance.
3.5 Customer shall use the Platform and Materials for the purpose set out in this Agreement and for no other purpose. Changes in the purpose and/or the scope of use must be approved beforehand by Spirable. Additional fees shall be payable by Customer on any such changes at Spirable’s then applicable rates.
3.6 Without affecting any other right or remedy available to it, if Customer breaches clause 8.2(ii), Spirable has the right to (i) remove from the Platform any such content, and/or (ii) suspend immediately Customer’s access and/or use of the Platform without giving notice to Customer.
3.7 Spirable reserves the right within its discretion to reject or remove from the Distribution Channels (and/or any other site) any Platform Ad where the Customer Content or the site to which the Platform Ad is linked do not comply with its policies, or that in Spirable’s sole reasonable judgment, do not comply with any applicable law, regulation or other judicial or administrative order. In addition, Spirable reserves the right within its discretion to reject or remove from the Distribution Channel (and/or other site) any Platform Ads where the Customer Content or the site to which the Platform Ad is linked are or may bring disparagement, ridicule, or scorn upon Spirable or any of its Associates.
4.1 The provisions of this clause 4 shall apply if Customer provides Gambling Services.
4.2 In consideration of the Fees, Spirable shall use reasonable endeavours to create and deliver the selected Use Case via the Distribution Channels in the Markets during the Term in accordance with the terms agreed between the parties.
4.3 Customer agrees to submit its instructions (i.e. Use Case, Distribution Channels, Markets etc), including any Customer Content (together the “Instructions”), at least 15 days before the commencement of the relevant Campaign in accordance with Spirable’s criteria and specifications from time to time (including content limitations, agreed technical specifications, policies, and material due dates).
4.4 Spirable shall have no obligation nor liability to deliver the Use Case to Customer if: (i) Customer fails to deliver the Instructions at least 15 days prior to the start of the Campaign, or (ii) the Use Case cannot be agreed between the parties.
5.1 The provisions of Schedule 1 shall apply if the Spirable Product to be provided to Customer under the Agreement includes Programmatic Marketing Services and/or Ad Serving Services.
5.2 The provisions of Schedule 2 shall apply if the Spirable Product to be provided to Customer under the Agreement includes the F2P Service.
6.1 Customer shall pay to Spirable the Fees. All Fees due hereunder shall be due and payable within 30 days of the invoice date. Fees are non-refundable. All sums payable under this Agreement are exclusive of VAT or any relevant local sales taxes, for which Customer shall be responsible. Spirable reserves the right to charge interest on all overdue payments at a rate of 3% per annum above the base rate from time to time of Barclays Bank plc. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Customer shall pay the interest together with the overdue amount. All amounts due under this Agreement shall be paid in cleared funds and in full without any set-off, counterclaim, deduction or withholding (other than any deduction and/or withholding of tax as required by applicable law).
7.1 Each party shall ensure that it keeps all information it receives regarding the business and affairs of the other party (including but not limited to the terms of this Agreement) confidential and, subject to paragraph 6.3, shall be permitted to disclose such information only to its professional representatives or advisers or as may be required by law or any legal or regulatory authority or with the prior consent of the other party.
7.2 Customer acknowledges Spirable’s right to publicise this Agreement. Customer agrees to support Spirable in publicising this Agreement for marketing and investor relations purposes through the issue of joint press releases, and any other marketing activity reasonably requested by Spirable.
7.3 Without limitation to clause 6.2, either party may, after consultation with the other party (to the extent that such consultation is practicable), make an announcement concerning this Agreement if required by: (i) law; or (ii) any securities exchange or regulatory or governmental body to which that party, or an Associate of that party, is subject, wherever situated, whether or not the requirement has the force of law.
8.1 The provisions of this clause 7 shall apply if, at any time during the Term, Customer or any of its Associates provides Gambling Services. Otherwise, and for the avoidance of doubt, this clause shall not apply.
8.2 Customer acknowledges and agrees that: (i), as a provider of Gambling Services, it is required to comply with all applicable betting, gambling and advertising laws and regulations; and (ii) it has taken and will take all necessary steps to ensure that the display of the advertisements distributed via the Platform is not illegal or actionable for any reason in any territory and shall comply with all applicable legislation, rules and regulations including, for the avoidance of doubt, any applicable advertising and/or financial services standards and codes.
8.3 Customer hereby warrants, represents and undertakes to Spirable that:
(i) Customer (and/or each relevant Associate (as applicable)) is, and will continue throughout the Term to be, regulated as a bookmaker and that it has, and will continue throughout the Term to have, all necessary rights: (i) to operate in all territories in which it conducts business; and (ii) for Platform Ads to be displayed in all territories in which it distributes such Platform Ads in accordance with this Agreement, and Customer will promptly inform Spirable if any such licence, consent, permission, or approval is withdrawn, revoked, suspended, or of any matter of which is likely to lead to the withdrawal, revocation, or suspension of any such licence, consent, permission, or approval;
(ii) neither Customer nor any of its Associates will provide anyone located in a Forbidden Jurisdiction with access to a Gambling Service;
(iii) neither Customer nor any of its Associates will knowingly accept from anyone located in a Forbidden Jurisdiction (whether a resident, citizen or otherwise) in consideration of the provision of a Gambling Service: (i) credit or the proceeds of credit (including credit cards); (ii) an electronic fund transfer, or funds transmitted by or through a money transmitting business (or the proceeds of either of these); (iii) a cheque, draft or similar instrument payable through a financial institution; and/or (iv) any other form of financial transaction as determined by Spirable acting reasonably; and
(iv) neither Customer nor any of its Associates is funded or owned in part or in whole by a Person that provides a Gambling Service to anyone located (whether a resident, citizen or otherwise) in a Forbidden Jurisdiction; and
(v) the Due Diligence information provided to Spirable is true and correct;
(vi) neither Spirable nor any of its Associates shall accept virtual goods and/or virtual currency (including, but not limited to, the use of cryptocurrency, cryptoassets and/or skins).
8.4 Spirable strictly prohibits any Customer Content and/or Platform Ads promoting or endorsing, or in any way relating to, use of cryptocurrencies (or any other virtual assets), which shall include any Customer Content or Platform Ads that induce end-users to engage with gambling activities by staking bets using virtual goods and/or virtual currency. In the event of a breach of this provision, Spirable shall be entitled to take down Customer Content and/or terminate this Agreement in accordance with clause 7.5.
8.5 Without prejudice to any other right that Spirable may have (under this Agreement or pursuant to applicable law), Spirable may terminate this Agreement with immediate effect, by serving notice, if it has a reason to believe that Customer is in breach of: (i) any of the representations, warranties or undertakings given in clause 7.3; or (ii) clause 7.4.
9.1 Each party represents and warrants to the other that it has, and will retain throughout the Term all rights, title and authority:
(i) to enter into this Agreement;
(ii) to grant to the other party the rights and licences granted in this Agreement; and
(iii) to perform all of its obligations under this Agreement.
9.2 Customer hereby warrants, represents and undertakes to Spirable that:
(i) Customer has the right to provide Customer Content to Spirable for publication, without infringing any rights of any third party including, without limitation, IPRs;
(ii) Customer Content complies at all times with all applicable laws, statutes, statutory instruments, contracts, regulations, advertising and marketing codes of practice in the Market(s);
(iii) Customer Content does not contain any material that is obscene, defamatory unlawful, hateful, abusive, harmful, threatening, infringing, harassing, offensive, facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence, is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability or age or in any way or contrary to any applicable law or regulation and/or causes damage or injury to any person and/or property, and does not give access via hyperlinks to any property containing the same;
(iv) if Customer Content contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or copy by which any living person is or can be readily identified, Customer warrants that Customer has obtained full consent in writing from such living person to make use of such name, representation and/or copy;
(v) Customer Content contains no viruses or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
(vi) Customer is and shall be solely responsible for fulfilling and dealing with any orders or enquiries relating to the goods, services or promotion to which the Customer Content relates;
(vii) Customer will not sub-license, transfer, encumber, sell, rent or otherwise provide access to the Spirable Products (or any part thereof) and/or the Spirable Technology (or any part thereof) to any third party;
(viii) Customer will not reproduce, disclose, decompile, disassemble, reverse engineer, modify or create derivative works from the Spirable Products (or any part thereof) or use the Professional Services (or any part thereof) for any purpose other than as set forth in this Agreement;
(ix) Customer will not (and will not attempt to) in any way access, use or copy any part of the Spirable Products and/or Spirable Technology (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Spirable Products (or any part thereof) or otherwise permit access to the Spirable Products (or any part thereof) by a competitor of Spirable;
(x) neither Customer nor any of its Associates, nor any of their respective beneficial owners, directors, or officers, nor to Customer’s knowledge any agent or employee thereof:
(A) is nor in the past five (5) years has been a Sanctioned Person;
(B) has transacted any business directly or knowingly indirectly with any Sanctioned Person;
(C) has otherwise violated Sanctions; nor
(D) will, directly or indirectly, use the proceeds of this Agreement or lend, contribute or otherwise make available such proceeds to or for the benefit of any Sanctioned Person or in any manner that would result in a violation of any Sanctions by, or could result in the imposition of Sanctions against, any individual or entity, including any party to this Agreement.
9.3 Spirable shall use reasonable skill and care in carrying out all its obligations under this Agreement as well as maintaining the availability of the Spirable Products during the Term, but does not represent, warrant or undertake that the Spirable Products are entirely error-free or that it will be available (in whole or in part) at all times. Spirable expressly disclaims all statutory and/or implied warranties. The Spirable Products are provided ‘as-is’ basis and ‘as available’.
9.4 Customer will fully indemnify and keep Spirable and its directors, officers and employees fully indemnified against all actions, proceedings, costs (including legal fees), damages, expenses, fines, losses (including loss of profits) penalties, claims (including any relating to Data Protection Laws), demands and liabilities directly or indirectly suffered or incurred Spirable (or its directors, officers or employees) howsoever arising from: (i) any alleged or actual breach by Customer of clauses 6, 7 (if applicable) and/or 8.2(i); (ii) Customer’s alleged failure to pay any fees for rights, including public performance, guild fees, or other fees associated with any ad or Customer Content; and (iv) the use of any content or technology, other than Customer Content, provided by Customer, or anyone acting on its behalf in the performance of the Order Form (“Customer Representatives”). Further, Customer shall be responsible for compliance with the terms of this Agreement by its Customer Representatives and Users in connection with this Agreement, and Customer’s indemnification obligation above shall extend to any acts, omissions, services and deliverables of its Customer Representatives and/or Users.
9.5 Customer will provide Spirable with full co-operation in defending any claim or complaint concerning Customer Content including providing evidence in support of advertising claims and copies of documentation evidencing the clearance of relevant underlying third party proprietary rights.
10.1 A party shall have and retain any and/or all IPRs in its confidential information.
10.2 Each party remains sole owner of the IPRs it owned prior to the execution of any Order Form. As between the parties, Spirable (and/or its licensors) shall have and retain any and/or all IPRs in and/or relating to the Spirable Products. Customer is the sole owner of all IPRs in and to the Customer Content.
10.3 For the duration of the Term, Customer grants Spirable a worldwide, royalty-free, non-transferable licence to use, reproduce and represent Customer trademarks and logos, and to display, reproduce, represent Customer Content: (a) on the Distribution Channels; and (b) on all documentation promoting the Spirable Products.
10.4 Any IPRs in new material created by Spirable which is derived solely and directly from Customer’s IPR and which is solely and directly developed by Spirable: (a) as a result of the provision of the Professional Services to Customer; and (b) on behalf of Customer, shall immediately vest in Customer, or where it is not possible for this to immediately vest in Customer, it shall be held by Spirable until such time as the transfer can be satisfied and Spirable shall do all this necessary to satisfy this requirement.
10.5 Customer shall have no rights and/or licences in and/or to the Spirable Products other than the right to use them subject to and in accordance with this Agreement. Any rights that are not expressly granted by Spirable to Customer herein are hereby expressly reserved by Spirable.
10.6 Customer hereby assigns title, interest and rights in suggestions, enhancement requests, recommendations, and/or other feedback provided by Customer and/or Users in respect of and/or relating to the Spirable Products.
10.7 Customer has no right to (or to attempt to do the following) and shall not allow and/or permit a third party to copy, reproduce, adapt, reverse engineer, decipher, decompile, disassemble, modify, and/or make error corrections to the Spirable Products, Spirable Technology and/or the Materials except as permitted under applicable law and/or Spirable (in writing).
11.1 Nothing in this Agreement shall limit or exclude the liability of either party (i) for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable), (ii) for fraud or fraudulent misrepresentation, (iii) in respect of any indemnities provided under this Agreement, and (iv) any matter in respect of which it would be unlawful to exclude or restrict liability.
11.2 Spirable shall not in any circumstances have any liability for any losses and/or damages which may be suffered by Customer which fall within any and/or all of the following categories:
(i) special losses and/or damages even if Spirable was or is aware of the circumstances in which such special damage could arise;
(ii) loss of actual or anticipated profits (direct or indirect);
(iii) loss of actual or anticipated revenue (direct or indirect);
(iv) loss of actual or anticipated savings or wasted expenditure;
(v) loss of goodwill;
(vi) loss of business opportunity;
(vii) loss of customers;
(viii) incidental, consequential and/or indirect losses and/or damages of any kind howsoever arising and whether or not they are foreseeable, foreseen or known;
(ix) loss of reputation; and/or
(x) damage, loss and/or corruption of data and/or information.
11.3 Subject to clauses 10.1 and 10.2, the total maximum aggregate liability of Spirable arising under, in relation to and/or in connection with this Agreement and/or any collateral contract (whether in contract, tort (including negligence) or otherwise) shall in no circumstances exceed an amount equal to the Fees set out in the relevant Order Form.
11.4 Spirable is unable to ensure or guarantee the security of information transmitted over the Internet. Any information or data transmitted across networks not owned and/or operated by or on behalf of Spirable (including the Internet and Customer’s network(s)) through the use of or in connection with the Spirable Products is at Customer’s risk.
11.5 All references to “Spirable” in this clause 10 shall include Spirable, its Associates, employees, contractors and suppliers of Spirable, all of whom shall have the benefit of the exclusions and limitations in this clause 10.
12.1 This Agreement shall (unless otherwise terminated in accordance with this Agreement) commence on the Effective Date and shall be effective for the Initial Term. This Agreement shall automatically renew at the end of the Initial Term for successive periods of 12 months (“Renewal Term”), unless either party provides written notice to the other of its intent not to renew the agreement at least 30 days’ prior to the expiration of the Initial Term or any Subsequent Term.
12.2 Without affecting any other right and/or remedy available to it, Spirable shall be entitled to suspend its performance of its obligations under the Agreement and/or terminate the Agreement with immediate effect by giving written notice to Customer if: (i) Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 5 Working Days after being notified in writing to make such payment, (ii) Spirable deems that Customer’s use of cryptocurrency, cryptoassets and/or skins via the provision and/or advertisement of its products and/or services directly or indirectly causes, or may cause, any detriment to Spirable’s reputation, brand and/or goodwill; (iii) Customer is or becomes a Sanctioned Period; (iv) Customer otherwise becomes a Person with whom it is unlawful for Spirable to transact business under Sanctions applicable to Spirable (and/or its Associates) from time to time, without giving effect to choice of law provisions of this Agreement or any laws applicable to Customer and/or (ii) Customer breaches 8.2.
12.3 Without affecting any other right and/or remedy available to it, either party may terminate this Agreement with immediate effect by giving notice to the other party if the other party (i) the other party commits a material breach of a term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so, (ii) (a) ceases or threatens to cease to carry on its business or substantially the whole of its business other than for the purposes of amalgamation or reconstruction without insolvency, or (b) has a winding up petition presented or enters into liquidation whether compulsorily or voluntarily (other than for the purposes of amalgamation or reconstruction without insolvency) or (c) makes an arrangement with its creditors or petitions for an administration order or has a receiver or manager appointed over any of its assets, or a court or arbitrator with authority to so determine, determines that the debtor is unable to pay its debts.
12.4 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
12.5 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations and/or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
12.6 On termination for any reason (i) all rights and licences granted to Customer under this Agreement shall cease, (ii) Customer shall cease all activities authorised by this Agreement, (iii) Customer shall immediately pay to Spirable any sums due to Spirable under this Agreement, and (iv) Customer shall immediately destroy or return to Spirable (at Spirable’s option) Materials and Spirable-supplied items then in its possession, custody or control and, in the case of destruction, certify to Spirable that it has done so.
13.1 Spirable reserves the right to amend the Agreement from time to time.
13.2 The provisions of this clause 12.2 shall apply if Customer is a sports team, league or federation. Spirable shall have the right to place cookies (or other tracking technology) on Customer’s digital properties for marketing (and associated analytics) purposes to track and collect information for the purposes of identifying individual visits to Customer’s digital properties (“Visitor Data”). The parties agree Visitor Data shall include without limitation device information (including identifiers and operating system information), browser information, cookie ID, email address, new/return visit, IP location, referring page and section/page URL viewed. Customer agrees to provide facilities (including a consent management platform) and take all necessary steps (including without limitation providing users with all required information, collecting all necessary consent, and providing the opportunity to withdraw consent) to allow Spirable to collect Visitor Data and place cookies (or other tracking technology) on Customer’s digital properties for use pursuant to this clause in full compliance with Data Protection Laws. Customer undertakes to cooperate with Spirable, and to make any changes as may be required from time to time, in order to ensure that the Visitor Data is and continues to be collected in full compliance with Data Protection Laws.
13.3 If there is conflict/ambiguity between a ToS provision and a Schedule provision, the ToS provision shall prevail. If there is a conflict/ambiguity between (a) a ToS and/or Schedule provision and (b) an executed Order Form or SoW provision, then (a) shall prevail, with the exception of the “Special Terms” in the Order Form, which shall, in the event of any conflict, take precedence over both these ToS, the Schedules and/or the SoW. The Agreement provisions shall always prevail over Customer purchase orders and/or other Customer documentation even if they say otherwise.
13.4 No failure and/or delay by a party to exercise any right and/or remedy provided under this Agreement and/or by applicable law shall constitute a waiver of that and/or any other right/remedy, nor shall it prevent and/or restrict the further exercise of that and/or any other right and/or remedy.
13.5 This Agreement contains the entire agreement between the parties relating to its subject matter and supersedes all prior agreements, arrangements and understandings between them relating to that subject matter except as expressly stated in this Agreement.
13.6 Each party does not rely on any statement, representation, undertaking, assurance and/or warranty (whether it was made negligently or innocently and whether in writing) of any Person (whether a party to this Agreement or not) (Representation) other than as expressly set out in this Agreement. The only rights and remedies available to it arising out of and/or in connection with a Representation shall be for breach of contract as expressly provided in this Agreement.
13.7 An Agreement provision is not enforceable by, (to be) relied upon or intended to benefit, any Person who is not a party to this Agreement.
13.8 No Agreement variation shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.9 A party shall only be entitled to assign its rights under this Agreement with the prior written consent of the other party, except that Spirable shall be entitled to assign its rights under this Agreement without consent to an Associate or a purchaser of all or a substantial part of its assets, business or undertaking.
13.10 Spirable may delegate the performance of any of its obligations hereunder to third parties without Customer’s consent, provided however that Spirable shall remain liable in contract for the provision of the Spirable Products notwithstanding such delegation.
13.11 Spirable may (i) use Customer’s name and logo in accordance with Customer’s branding guidelines supplied to Spirable in its marketing, PR and sales materials and activities, and (ii) develop a Customer case study to be included in such materials and activities.
13.12 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
13.13 A party shall not be in breach of this Agreement nor liable for delay in performing, and/or failure to perform, any of its obligations under this Agreement (excluding Customer’s payment obligations), if such delay and/or failure results from events, circumstances or causes beyond its reasonable control such as failure of part of the power grid, ISP equipment failure, host equipment failure, security attack (e.g. DoS, phishing), malware attacks and infections, communications network failure, default of Spirable suppliers or contractors (Force Majeure).
13.14 Notices (including invoices) under this Agreement will be in writing. Notices may be given, and will be deemed received (i) by pre-paid first-class post: on the second Working Day after posting, (ii) by hand: on receipt of a signature at the time of delivery, (iv) by email 24 hours from delivery if sent to the correct email address and no notice of delivery failure is received or on receipt of confirmation of receipt from the recipient. Notices will be sent to the email address or postal address of the parties as set out in the Order Form. A party may change the address and email address to which notices are to be delivered by giving not less than 7 Working Days’ notice to the other party. This clause shall not apply to the service of any proceedings or other documents in any legal action, arbitration or other method of dispute resolution.
13.15 Subject to clause 12.16, any dispute arising out of or in connection with this Agreement shall first be escalated to the parties’ Contract Managers. If the dispute remains unresolved for 5 days, it shall be referred to a senior executive of each party who shall attempt resolution through negotiations. If the dispute remains unresolved for a further 5 days, either party may refer the dispute to the English courts. This clause shall not restrict a party from initiating any proceedings in respect of a matter where that party has reasonable cause to do so in order to avoid damage to its business and/or to protect or present any right of action it may have, and/or from applying for and/or obtaining emergency or interlocutory relief.
13.16 This Agreement and any dispute and/or claim arising out of (or in connection with) it, its subject matter and/or formation (including non-contractual disputes and/or claims) shall be exclusively governed by and construed in accordance with English law and shall be subject to the exclusive jurisdiction of the English Courts.